Australia: Sound-alikes: How Close To The Sun Can You Fly Following The Kookaburra Case?

Addisons FocusPapers
Last Updated: 9 May 2010
Article by Ashleigh Fehrenbach and Andrew Dawson

Can you use two bars of music without permission? While the question may seem straightforward, the answer following the Federal Court's decision of Larrikin Music Publishing Pty Ltd v EMI Songs Publishing Pty Ltd [2010] FCA 29 ("Kookaburra Case") is not. Consider, for instance, the famous opening song of Star Wars. The first two bars are easily one of the most recognisable melodies. It invokes various emotions of heroism, adventure and exciting galactic voyages. Indeed, the use of it would most likely constitute an infringement of copyright law. However, if you slightly tweak this piece of music, does it still infringe copyright? If not, how far do you need to tweak it until you are safe?

For television production teams, ring-tone producers and musicians, the issue of whether their sound-alike infringes copyright is coming into the spotlight. "Sound-alikes" can be heard everyday on television, on the radio and on ring-tones. They generally mimic a commonly found tune and aim to invoke a similar emotion and reaction from an audience. Some even "mash-up" two different hits to create an apparently new result. Given their commonality, the critical question becomes how legally "sound" are these libraries of sound-alikes?

The Kookaburra Case

In the Kookaburra Case, Jacobson J was asked to determine if two bars of the Australian iconic composition titled "Down Under" infringed the copyright of another iconic Australian song, "Kookaburra sits in the old gum tree." The question became therefore: was "Down Under" paying homage to the original song, or was it reproducing it without authorisation? Under Australian copyright law, infringement takes place where a person, without the licence of the owner of the copyright, reproduces a substantial part of the work.

Justice Jacobson asked two questions to determine this. First, has there been a reproduction? To determine this, the two works must have an objective similarity and a causal connection. If this requisite is met, the second issue is whether a substantial part of that work has been reproduced.

In finding that infringement had taken place, the court has provided useful guidance as to when a sound-alike crosses the line and constitutes infringement of copyright.

Does a sound-alike "reproduce" a part of the original work?

Reproduction is a question of fact and can be determined by the eye and the ear. In the Kookaburra Case, expert witnesses were brought to examine the objective similarity of the two works in question. The judge stated that, in determining if there is an objective similarity, melody, key, tempo, harmony and structure were the key considerations.

Melody: When considering the melody of a sound-alike, the test is of whether an ordinary reasonable listener can discern that the melodies are objectively similar. It is notable that, in the Kookaburra Case, the inclusion of various other notes did not change the finding that the "resemblance is exact".

Key: You can change the key of the music and use it without permission, right? Wrong. A sound-alike composed in a different key can change the pitch of the tune, but "nothing turns on this." Indeed, in the Kookaburra Case, it was held that:

the precise key or pitch is not relevant to an appreciation or recognition of a tune. What is relevant in determining whether a melody is the same is the interrelationships of the pitches within the melody.

Tempo: To the casual observer, a change of the rhythm can change a song entirely. For example, Chet Baker's version of "Every Time We Say Goodbye" can reasonably be said not to be anything like Ella Fitzgerald's version of the same song. Notwithstanding this, where the tempo is "more or less" the same, the sound-alike is one step closer to becoming objectively similar.

Harmony: In the Kookaburra Case, "Down Under" had been re-harmonised from a major key to its relative minor. However, Jacobson J held that, even with the change, the difference did not make the two works unrecognisable; it was comparable to playing a tune in one instrument in the first instance and then on another instrument and arguing the tune could not be recognised. Indeed, re-harmonisation was seen to be like shining a different light on a given tune.

Structure: The respondents in the Kookaburra Case argued that, given the change in key and harmony, the structure of the song was such that it reflected a clear difficulty in the ear of an ordinary listener to recognise the songs as similar. However, the judge did not agree, stating that any separation of notes or bars via punctuations does not make them different, but rather means an audience hears them differently.

It follows in my view that the separation of the two phrases from "Kookaburra" are not a material difference in "Down Under" and their separation or punctuation by the basic hook does not prevent a finding of reproduction.

Does the sound-alike reproduce a "substantial part"?

A sound-alike which comprises the "signature" of the copyright work does not, in and of itself, mean that it reproduces a substantial part. The test of whether a substantial part has been copied is determined by using a qualitative and quantitative test. Furthermore, courts have also held that, generally speaking, the simpler the copyright work, the greater the degree of "copying" that will be required.

What does this mean to you?

If you intend to use a sound-alike, be sure that there has not been a reproduction of a substantial part of a work in which copyright subsists. While the judge in the Larrikin Case did not look favourably on minor changes to the melody, key, tempo, harmony and structure, significant changes to these may be enough to halt an argument that infringement has taken place. However, it is obviously a balancing act. Tweak the piece of music too far and any emotions you hope to invoke in the audience may be lost; tweak the tune too little and you may inadvertently infringe third-parties' copyright. Legal advice is advisable.

So, can you use two bars of music without permission? The answer is that, while copyright infringement in the context of sound-alikes may seem like a highly subjective determination, judges will apply the law as they "hear" it. In the Kookaburra case, the answer was no, you cannot. One thing is clear though: despite the Kookaburra Case being on appeal, the decision paves the way for similar cases in the future; and with copyright owners feeling increasingly trigger-happy, careful consideration needs to be given when composing a sound-alike.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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